- The Washington Times - Friday, April 16, 2010


The retirement of Supreme Court Justice John Paul Stevens gives President Obama an opportunity to fill a second Supreme Court vacancy. The choice could be pivotal because the court soon will be asked to rule on the constitutionality of intrusive health legislation enacted under Congress’ power to regulate commerce, i.e., the Commerce Clause. With this president seeking a larger and larger federal establishment, health care will not be the only such case the court will decide in the coming years.

This upcoming debate fits well with the public’s concern about huge deficits, high taxes and an ever-larger federal establishment that tries to do everything but does nothing very well. A seminal reason for the existence of such an ineffective federal government is that we have ignored traditional constitutional prohibitions against the federal government usurping functions that should be left to the individual states. Debate over the Stevens vacancy is another opportunity to rediscover the constitutional virtues of federalism and limited government. Republican members should question the president’s nominee closely to ascertain what restraints, if any, he thinks the Constitution places on federal power.

The traditional view of the American Constitution is that the document sets limits on the power and scope of the federal government. The Supreme Court’s jurisdiction is defined, as is the power of the executive. Congress is delegated specific “enumerated powers,” at least one of which must form the constitutional basis for any congressional legislation.

As James Madison noted in the Federalist Papers, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.” This view was codified in the 10th Amendment, which specifically reserves to the states all powers not specifically delegated to the federal government.

By far, the most elastic of these enumerated congressional powers is the ability of Congress to “regulate commerce … among the several states.” Congress has used this power to justify the creation of the entire federal welfare state even as some of the underlying laws conflicted with other parts of the Constitution, such as the 10th Amendment. The expansion of congressional jurisdiction to legislate under the Commerce Clause has done more to expand federal power at the expense of states than any other development in our history.

The court will soon be asked to decide if Congress can cite the Commerce Clause as justification to force everyone in America to purchase health insurance even if state law specifically prohibits it. This is the basis of the suit filed by a large number of states seeking to invalidate the individual-mandate provision of Obamacare. If Congress can force every American to purchase any product or service, we can safely say that the Constitution, as a check on federal power, is a dead letter.

President Obama has never accepted this view. Recall his doctrine of “negative liberty”:

“Generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”

In other words, liberty is not something granted to individuals but rather represents the “freedom” of government to act on our behalf. Thus, any restraint on the government’s ability to act in pursuit of the common good is negative liberty. Conservatives think absolute power corrupts absolutely. Liberals think undiminished federal power enhances the body politic.

It is no wonder Americans tremble every time this president nominates a federal judge.

Frank Donatelliis chairman of GOPAC.

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